Conversion of 8,000 Conditional Grants for Fiscal Year 1998

Because of the statutory language, it is necessary to devise a procedure that will convert up to 8,000 conditional grants to grants before the end of fiscal year 1998. The statute states that "[t]he Attorney General may not cancel the removal and adjust the status under this section, nor suspend the deportation and adjust the status under section 244(a) (as in effect before the enactment of [IIRIRA]), of a total of more than 4,000 aliens in any fiscal year." INA § 240A(e). The phrase "in any fiscal year" h as been interpreted to mean that those eligible aliens must be granted relief of suspension of deportation or cancellation of removal during the fiscal year in which they are given a grant under the cap. To implement the 8,000 cap for fiscal year 1998, the Department has determined that the first 8,000 conditional grants (not including Nicaraguan and Cuban nationals with conditional grants) that were made since October 1997 shall be converted to grants of suspension of deportation or cancellation of removal in order of the date the conditional grant was issued by the Immigration Court or the Board, unless the immigration judge's decision is on appeal at the Board, or either party has reserved appeal of an immigration judge's decision and the time for appeal has not run out. Before the end of fiscal year 1998, EOIR will remove the condition and grant suspension of deportation or cancellation of removal and adjustment of status. Conversion from a conditional grant to a grant is not an appealable action. Pursua nt to the interim regulation providing for conditional grants at 62 FR 51760 (Oct. 3, 1997), the right of appeal attaches at the time of entry of the conditional grant.

Because this conversion will take place in a short period of time and will not involve review of the merits of the cases, this rule permits the Service to file a motion to reopen within 90 days after an alien is issued a grant of suspension of deportation or cancellation of removal. This rule provides that such motions to reopen are only permitted if, while the applicant was a conditional grantee, he or she committed an act that would have rendered him or her statutorily ineligible for such relief. Motions to reopen based upon evidence that might affect a discretionary finding are not authorized by this rule.

Ability To Travel for Aliens With Conditional Grants

The Service has received several inquiries concerning the effect of travel on an alien's conditional grant. This interim rule, promulgated by the Attorney General, provides a definitive answer to this recurring question. As a result of delays associated with implementation of the statutory cap provision, a significant period of time may have elapsed before an alien's conditional grant is converted to a grant of suspension of deportation or cancellation of removal. Some aliens with conditional grants will ha ve had or will have legitimate needs to travel. Because such aliens are determined at the time of the conditional grant to be statutorily eligible to receive suspension of deportation or cancellation of removal and to warrant a grant on the basis of discretion, it is likely that they will be able to remain permanently in the United States as lawful permanent residents once their conditional grants are converted to grants. Therefore, the Attorney General finds it reasonable to permit conditional grantees to return to the United States after a temporary absence abroad without losing their conditional grant by virtue of their departure.

This interim rule provides that those aliens with conditional grants of suspension of deportation or cancellation of removal who, before publication of this interim rule, temporarily traveled abroad or who are abroad and have not returned, shall not lose their conditional grants as a result of their departure. The Attorney General recognizes the unique nature of the conditional grant and, since it is likely that many of these conditional grantees would not have understood the consequences of departing the U nited States without advance parole, finds it reasonable to grant this one-time waiver. However, upon publication of this rule in the Federal Register , an alien with a conditional grant must first obtain a grant of advance parole from the District Director before he or she leaves the United States. This requirement allows the Service to verify the alien's claims about the purpose of his or her travel and the duration of his or her absence, in order to aid in its determination of whether to grant or deny advance parole.

Eliminate the Conditional Grant Process

In the interim rule published on October 3, 1997, which established a procedure for processing suspension of deportation and cancellation of removal applications, the Department made clear in the supplementary language that "[t]his rule is a transitional measure in that conditional grants of suspension of deportation and cancellation of removal will be revisited after the Department determines how best to implement sections 304(a)(3) and 309(c)(7) of IIRIRA." 62 FR at 51761. The Department has determined th at it will no longer implement the conditional grant process. After review of the statutory cap provision, the Department does not believe that the statute supports a permanent regime based on conditional grants. Instead, future grants of suspension and cancellation of removal will be issued on a "first in time" basis, outlined further below.

Conditional Grants From Fiscal Year 1998

Although the cap may not be reached in fiscal year 1998 (not including those Nicaraguans and Cubans eligible for relief under section 202 of NACARA as discussed below), any conditional grants which remain after the fiscal year 1998 grants are issued shall be converted to grants in fiscal year 1999 and will count against the numerical cap for fiscal year 1999. If there are conditional grants that could not be converted in fiscal year 1998 (e.g., if the time for appeal had not run until after the end of fisca l year 1998) such conditional grant will be converted in fiscal year 1999. Accordingly, this procedure will allow for all persons whose cases were adjudicated under the October 3, 1997 interim regulation providing for conditional grants who remain in conditional grant status in fiscal year 1999 to receive a grant of suspension of deportation or cancellation of removal in fiscal year 1999.

Treatment of Certain Nicaraguan and Cuban Nationals With Conditional Grants

In fiscal year 1998, over 1,000 nationals of Nicaragua and Cuba were given conditional grants of suspension of deportation or cancellation of removal. On November 19, 1997, the enactment of NACARA made certain Nicaraguan and Cuban nationals eligible for adjustment of status in addition to other forms of relief. See NACARA section 202. In an effort to preserve as many grants as possible under the cap in fiscal year 1998 for aliens for whom suspension of deportation or cancellation of removal was truly the on ly avenue for relief, the Attorney General has determined that it is appropriate to offer those nationals of Nicaragua and Cuba who have already received a conditional grant of suspension or cancellation an opportunity to first pursue adjustment of status under section 202 of NACARA (NACARA adjustment). These Nicaraguan and Cuban nationals who are processed for adjustment will receive the benefit of an immediate adjudication of their adjustment of status requests before a Service officer on or before Decem ber 31, 1998. Further, Nicaraguan and Cuban national spouses and children, including certain unmarried sons and daughters, of NACARA-adjusted aliens, may be immediately eligible for NACARA adjustment themselves. No such derivative benefit accrues from a grant of suspension of deportation or cancellation of removal.

To be eligible for adjustment of status pursuant to NACARA section 202, an alien must be a person who: (1) Is a national of Nicaragua or Cuba; (2) has been physically present in the United States for a period commencing not later than December 1, 1995 and ending not earlier than the date of adjustment (excluding absences totaling not more than 180 days); (3) is not inadmissible under any provision of INA section 212 not specifically excepted by NACARA ( e.g., public charge, lack of labor certification, illegal entry, lack of immigrant visa/entry document, and unlawful presence); and (4) applies for such adjustment before April 1, 2000.

By virtue of having received a conditional grant of suspension of deportation or cancellation of removal, which entails successfully demonstrating a lengthy period of continuous physical presence in the United States as well as good moral character during this period, most Nicaraguans and Cubans in this position should easily be able to satisfy the similar eligibility requirements for NACARA adjustment. As a result, the Attorney General has determined that this alternative avenue of relief to suspension/can cellation must be explored by all Cuban and Nicaraguan conditional grantees identified by EOIR. To that end, the Attorney General, in this regulation, deems the application for suspension of deportation or cancellation of removal filed by a national of Nicaragua or Cuba who has received a conditional grant of suspension of deportation or cancellation of removal on or before September 30, 1998 to be a concurrent request for NACARA adjustment.

In order to provide relief in the form of NACARA adjustment to as many conditional suspension/cancellation grantees as possible, the Attorney General has directed the Service to give individual notice to all Cuban and Nicaraguan conditional grantees identified by EOIR. The notice shall inform them of the date, time, and place at which they must appear before a Service officer to perfect their request for NACARA adjustment. Since the file of an applicant for suspension of deportation or cancellation of remov al will not invariably contain all of the information necessary to determine an alien's eligibility for NACARA adjustment, the alien will be required to complete a form in which the alien must attest to certain facts regarding his or her eligibility for NACARA adjustment. If the alien is inadmissible to the United States, he or she may apply for any applicable waivers of inadmissibility. Given that this application process has been mandated by the Attorney General, no fees will be charged for perfecting a N ACARA adjustment request or for any applications for a waiver of inadmissibility submitted in conjunction with these NACARA adjustment requests. To the extent that a Cuban or Nicaraguan national who received a conditional grant of suspension or cancellation on or before September 30, 1998, applied for NACARA adjustment through the preexisting channels prior to the effective date of this regulation, no refund of the application fees shall be issued.

If the Service officer grants NACARA adjustment, he or she shall create a record of lawful permanent residence, the order granting suspension of deportation or cancellation of removal on a conditional basis shall be vacated, and the alien's deportation or removal proceedings shall be terminated automatically. If, at the time of the alien's appearance before a Service officer, the alien expresses a desire not to be processed for NACARA adjustment, is unable to complete the attestation, or if the Service offi cer determines that the alien is ineligible for such adjustment, the alien's conditional grant of suspension or cancellation shall be automatically converted to a final grant and the Service will create a record of lawful permanent residence on the basis of that grant. The Service will then notify EOIR that a suspension/cancellation grant has been allotted. For that reason, there is no appeal from a Service officer's determination that an alien is not eligible for NACARA adjustment. If an alien fails to app ear before a Service officer when scheduled, his or her conditional grant of suspension of deportation or cancellation of removal shall be automatically converted to a final grant effective December 31, 1998. After December 31, 1998, an application for suspension of deportation or cancellation of removal filed by a national of Nicaragua or Cuba who received a conditional grant of suspension or cancellation on or before September 30, 1998, shall cease to be considered a request for NACARA adjustment.

The Attorney General has directed that all NACARA eligibility determinations, as outlined above, be completed on or before December 31, 1998, to ensure that covered conditional grantees obtain lawful permanent residence status as soon as possible, be it pursuant to section 202 of NACARA or through a grant of suspension/cancellation. In order to minimize the processing time for these applicants, the Attorney General has deemed the documentary requirements applicable to other NACARA adjustment applicants to b e satisfied by the completion of the attestation form noted above. As a result, these applicants will not be required to submit medical examination records or a new set of fingerprints. In addition, the Attorney General has directed that, absent contrary evidence developed in an interview or otherwise, the Service will accept the attestation form as sufficient evidence of an alien's admissibility, including health-related grounds and/or continuous physical presence. The Attorney General has determined that these extraordinary measures are justified in this limited instance because these aliens have already been found eligible to obtain lawful permanent resident status, and in fact will obtain such status on the basis of suspension of deportation or cancellation of removal even if they do not seek or are found ineligible for NACARA adjustment. As a result, there will be little incentive for an alien to misrepresent his or her circumstances to the Service officer. However, any alien found to have misrepresente d his or her eligibility for NACARA adjustment will be subject to prosecution and removal from the United States.

Future Implementation of the Cap

Under the first in time process established in this interim rule, the Immigration Court and the Board will issue grants of suspension of deportation or cancellation of removal in chronological order until grants are no longer available in a fiscal year. A grant will be counted against the cap for the fiscal year in which a grant of suspension of deportation or cancellation of removal is final as set forth in 8 CFR 3.1(d)(2) and 3.39. To ensure that the cap is not exceeded in any fiscal year, the Immigration Court and the Board, except as described below, will reserve all decisions on suspension of deportation or cancellation of removal when grants are no longer available in any fiscal year. Those reserved decisions will be completed in the next fiscal year if there are grants available under the cap. If grants are not available in the next fiscal year, decisions will be completed in a fiscal year when grants are available. Persons with reserved decisions will be considered to still be "in proceedings" while t heir decision is reserved. They normally cannot be removed from the country while they are still in proceedings. Neither can they receive any form of relief until the Immigration Court or the Board takes further action.

The requirement to reserve decision once grants are no longer available in a fiscal year will not apply in the following circumstances. Immigration judges and the Board may deny without reserving decision or may pretermit suspension of deportation or cancellation of removal applications because the applicant has failed to establish statutory eligibility for relief. The following is a partial list of examples in which the Immigration Court and the Board may deny without reserving decision or may pretermit su spension of deportation or cancellation of removal applications, because the applicant is ineligible for relief based on statutory bars: (1) The alien is an aggravated felon pursuant to section 101(a)(43) of the INA; (2) the mandatory bar to establishing good moral character pursuant to section 101(f) of the INA applies to the alien; (3) the alien failed to voluntarily depart, was found deportable or removable in absentia, or failed to appear for deportation or removal at the time and place ordered as set f orth in section 242B(e) of the INA (as in effect prior to April 1, 1997), and sections 240B(d) and 240(b)(7) of the INA; (4) the alien does not have the requisite continuous physical presence for suspension of deportation or cancellation of removal relief pursuant to section 244(a) of the INA (as in effect prior to April 1, 1997) or section 240A(b) of the INA; or (5) (for cancellation cases only) the alien cannot demonstrate that he or she has a qualifying relative as to whom exceptional or extremely unusua l hardship must be shown.

However, such denial or pretermission of a suspension or cancellation application shall not be based on any of the following: an unfavorable exercise of discretion, a finding of no good moral character on a ground not specifically noted in section 101(f) of the INA, a failure to establish exceptional or extremely unusual hardship to a qualifying relative in cancellation cases, or a failure to establish extreme hardship to the applicant and/or qualifying relative in suspension cases.

Those Eligible for Other Forms of Relief

Whether or not the cap has been reached, the Immigration Court or the Board shall adjudicate concurrently all other forms of relief for which the alien has applied. If the Immigration Court or the Board grants asylum or adjustment of status, the application for suspension or cancellation shall be denied in the exercise of discretion. If the Immigration Court denies as a matter of discretion an application for suspension of deportation or cancellation of removal on such basis, such decision will be reconside red if an appeal of the decision granting asylum or adjustment is sustained by the Board.